The collapse of the Time Warner-Comcast merger means there's no end in sight for the Dodger TV blackout. For more than a year now, only about 30 percent of the L.A. media market has had access to the games.
Now, more and more fans are turning to online streaming. As we explained a few weeks ago, it's fairly simple. Fans can sign up for MLB.TV, which streams all out-of-market games, but blacks out local games. Then they can use a service to change their computer's location, which gets around the blackout. Easy.
But is it legal? In its Terms of Service, MLB Advanced Media warns that if users are caught doing this, they risk early termination and a $100 fine. It goes on, in all caps, to warn of other repercussions:
YOU MAY BE SUBJECT TO LEGAL ACTION; AND MLBAM RESERVES THE RIGHT TO REPORT SUCH MISCONDUCT TO APPROPRIATE LAW ENFORCEMENT AUTHORITIES.
It sounds threatening, but notice that it doesn't cite any criminal statutes that explicitly forbid this. That's because there aren't any. As always with technological innovation, it takes a while for the law to catch up.
There are older statutes that could be interpreted to prohibit “cybertravel” — a term for the evasion of online geoblocking. The Digital Millennium Copyright Act (1998) and the Computer Fraud and Abuse Act (1986) were both written well before this became an issue. So far, no cases have tested the question of whether they apply to cybertravel.
“It's definitely in flux,” says Mitch Stoltz, a staff attorney at the Electronic Frontier Foundation.
Stoltz argued that copyright law likely would not apply to a Dodger fan using a VPN service because the fan is merely watching the game — not copying it — and is, in fact, paying to do so. (An MLB.TV subscription costs $130 a year.)
“Accessing something you’re already paying for is hardly piracy,” Stoltz says.
That leaves the CFAA, which is the federal government's anti-hacking statute. It was used to prosecute Internet activist Aaron Swartz, and remains a target for supporters online freedom. Because it is very broadly written — essentially banning all unauthorized computer access — it could conceivably be used to crack down on cybertravel.
“If they did that, it would be an abuse of the law,” Stoltz says.
As a practical matter, though, it's hard to imagine the FBI or local police spending time and money to prosecute Dodger fans for streaming games.
It's also hard to see how MLB Advanced Media could pursue any civil remedies. For one thing, if a subscriber logs into MLB.TV from a server in Texas, it's not easy to tell that they're actually sitting on a couch in Los Angeles.
“Everything's encrypted,” says Joseph Craig, a spokesman for Private Internet Access, a VPN service. “It's untraceable.”
In the absence of other options, all MLB Advanced Media can really do is appeal to fans' sense of fair play.
“It's not a victimless crime,” Bob Bowman, president of MLB Advanced Media, told the L.A. Times. “It seems innocent, but it's really not. It's a big ecosystem where everyone has to do his or her share.”
He's right that it isn't a victimless crime — it hasn't been shown to be a crime at all. As for the “victim,” it's not MLB Advanced Media, which is pocketing $130 per subscriber.
No, the actual “victim” is Time Warner Cable, which caused the TV blackout by overpaying for the Dodgers rights.
No one should expect much sympathy there.